SHIN (Migration)

[2018] AATA 3572

SHIN (Migration) [2018] AATA 3572 (17 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MYEONG SUN SHIN
Mrs Kyung Rae KIM
Miss Jinhee SHIN
Mr Keonwoong SHIN

CASE NUMBER:  1703554

HOME AFFAIRS REFERENCE(S):           BCC2016/1253491

MEMBER:Alan McMurran

DATE:17 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 17 August 2018 at 9:48am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Requirement to be subject of an approved nomination – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.233(3), 186.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 February 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 March 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Travel Agency Manager (ANZSCO 142116).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.233 of Schedule 2 to the Regulations because the nomination application by the sponsor, Oz Oceania Tours Pty Ltd was refused.

6. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the subject of an approved nomination and that regulation 186.233(3) has been met.

   Nomination of a position

8. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made the nomination

   ·the nomination has been approved and has not been subsequently withdrawn

   ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

   ·the position is still available to the applicant, and

   ·the visa application was made no more than six months after the nomination of the position was approved.

10. For the purposes of this review, the Tribunal has had access to the Department’s file, together with the information on the Tribunal’s file[1] and the Department’s sponsor’s file[2].

    [1] 1700859

    [2] BCC2016/1253304

11. The nomination application was refused by decision of the Tribunal on 26 July 2018.

12. On 1 August 2018, the Tribunal sent a natural justice letter to the applicants. The letter informed the applicants that the review of the employer nomination refusal had been completed by the Tribunal and the Department’s decision had been affirmed by the AAT.

13. The letter invited the applicants to comment on or respond to this information. The applicants were requested to respond in writing by 15 August 2018 and to provide any comments accordingly. The applicants were also informed that they could seek an extension of time and provide reasons for making such a request. The applicants did not respond to the Tribunal’s letter, which was also sent to the applicant’s representative, Nicole Yoo.

    Findings

14. The Tribunal is satisfied on the information before it that the Minister has not approved the nomination of the visa applicant by the sponsor, Oz Oceania Tours Pty Ltd.

15. The Tribunal finds that the visa applicant is not the subject of an approved nomination by the Minister.

16. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    Secondary Applicants – Family Members

17. The Tribunal also finds on the information before it that the secondary applicants, who made a combined application with the visa applicant, are not members of the family unit of a person who holds a subclass 186 visa, granted on the basis of the primary applicant satisfying the primary criteria for the grant of the visa. The Tribunal finds that the secondary applicants do not meet the secondary criteria under regulation 186.311(a).

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.